Citation Nr: 0619462
Decision Date: 07/03/06 Archive Date: 07/13/06
DOCKET NO. 01-08919 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Denver,
Colorado
THE ISSUE
Entitlement to a monetary allowance as a child of a Vietnam
veteran with disability resulting from spina bifida.
REPRESENTATION
Appellant represented by: Paralyzed Veterans of America,
Inc.
WITNESSES AT HEARING ON APPEAL
Appellant and wife
ATTORNEY FOR THE BOARD
Dan Brook, Associate Counsel
INTRODUCTION
The appellant is a veteran who served on active duty from
July 1959 to April 1969, and is appealing this matter as
custodian of his daughter. Records reflect that he served in
Vietnam. This matter comes to the Board of Veterans' Appeals
(Board) on appeal from a February 2001 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Albuquerque, New Mexico. An informal hearing was held at the
Albuquerque RO in June 2001. The case is now under the
jurisdiction of the Denver, Colorado RO. In February 2004,
the Board remanded the case to the RO to ensure VCAA
compliance.
FINDINGS OF FACT
1. The appellant is the biological child of a Vietnam
veteran.
2. The appellant's occipital cephalocele is shown to be a
form of spina bifida.
CONCLUSION OF LAW
The criteria for payment of a monetary allowance to a child
of a Vietnam veteran for disability resulting from spina
bifida have been met. 38 U.S.C.A. §§ 1805, 5107(b) (West
2002 & Supp. 2005); 38 C.F.R. § 3.814 (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. VCAA
The Veterans Claims Assistance Act of 2000 (VCAA) describes
VA's duty to notify and assist claimants in substantiating a
claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159,
3.326(a).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his or her representative, if any, of any
information, and any medical or lay evidence, that is
necessary to substantiate the claim. 38 U.S.C.A. § 5103(a);
38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App.
183 (2002). Proper VCAA notice must inform the claimant of
any information and evidence not of record (1) that is
necessary to substantiate the claim; (2) that VA will seek to
provide; (3) that the claimant is expected to provide; and
(4) must ask the claimant to provide any evidence in her or
his possession that pertains to the claim in accordance with
38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a
claimant before the initial unfavorable agency of original
jurisdiction (AOJ) decision on a claim. Pelegrini v.
Principi, 18 Vet. App. 112 (2004).
The VCAA applies in the instant case. However, as the
decision below constitutes a full grant of the benefit
sought, there is no need to belabor the impact of the VCAA on
this claim. Significantly, the veteran was provided a VCAA
notice letter in August 2004 that explained the evidence
necessary to substantiate the claim, his and VA's
responsibilities in claims development and requested that he
send VA any evidence in his possession.
II. Factual Background
The veteran's service personnel records show that he served
in the Republic of Vietnam from January 1966 to February
1967.
The appellant's September 1980 birth certificate shows that
she is the biological child of the veteran.
A September 1980 private medical record shows that the
appellant was born with occipital encephalocele, and required
surgery to repair the defect. She also had to have surgery
for hydrocephalus in October 1980, when a
ventriculoperitoneal shunt was put in place.
A June 2000 private medical opinion from Dr. S, a
pediatrician indicates that spina bifida is classified as a
neural tube defect in the same group with encephalocele and
that spina bifida was located in the lower part of the spinal
canal whereas encephalocele was located in the upper part of
the spinal canal. In Dr. S's opinion, if (as VA recognizes)
Agent Orange causes a neural tube defect like spina bifida,
it could also produce encephalocele, a lack of closure in the
upper part of the spinal canal.
An August 2001 VA medical opinion found that X-rays did not
show any evidence that the appellant had spina bifida.
In May 2006, pursuant to Board request, an expert medical
opinion was provided by Dr. L, a VA neurologist. Dr. L
indicated that spina bifida is a neural tube defect that is a
form of dysraphism in which the neural tube does not close in
a normal fashion and that encephalocele is also a neural tube
defect. He opined that occipital cephalocele was a form of
spina bifida and that hydrocephalus was a manifestation of
spina bifida.
III. Analysis
VA shall pay a monthly allowance, based upon the level of
disability, to or for a child who has been determined to be
suffering from spina bifida and who is a child of a Vietnam
veteran. 38 U.S.C.A. § 1805(a); 38 C.F.R. § 3.814(a).
"Spina bifida" means any form and manifestation of spina
bifida except spina bifida occulta. 38 U.S.C.A. § 1802; 38
C.F.R. § 3.814(c)(3). Jones v. Principi, 16 Vet. App. 219
(2002). The Board notes that spina bifida is the only birth
defect that warrants the award of monetary benefits based on
the herbicide exposure of the veteran as a father of that
child. Jones, supra.
The term "Vietnam veteran" means a person who performed
active military service in the Republic of Vietnam during the
period beginning on January 9, 1962, and ending on May 7,
1975, to include service in the waters offshore and service
in other locations, if the conditions of service involved
duty or visitation in the Republic of Vietnam. 38 C.F.R. §
3.814(c)(1).
The May 2006 VA expert medical opinion resolves the prior
apparent conflict in the medical evidence of record and
establishes that the appellant (who is a biological child of
a veteran who served in Vietnam) has both disability that is
a form of spina bifida and disability that is a manifestation
of spina bifida.
Accordingly the criteria for establishing entitlement to the
benefit sought are met. The appellant's daughter is entitled
to the payment of a monetary allowance as a child of a
Vietnam veteran with spina bifida.
ORDER
The appeal to establish the veteran's daughter's entitlement
to a monetary allowance as a child of a Vietnam veteran with
spina bifida is granted.
____________________________________________
GEORGE R. SENYK
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs